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PAGE 8 COMMENT June 28, 2010 • Law Times ism often look like an attempt to cast a cloak of principle over sour grapes. Th ose who say judges are out of control often seem to be wishing they had decided things diff erently. J Does Supreme Court have too much power? That's udges act. Th at's why they call it the rule of law. Com- plaints about judicial activ- Dennis Baker fears the courts are getting out of control. But he's not interested in compar- ing courts whose judgments he dislikes to those of which he approves. Courts have become too assertive, he suggests. But his solution is to encourage a more active response from legislatures and executives. In a cogent new book, Not Quite Supreme, Baker doesn't seek to bully or cajole courts out of their activism. He would let judges judge; he just wants to see some resistance from other con- stitutional actors. Baker, a political science Subscribe to Law Times Why pay extra for your legal news? Cutting-edge legal affairs, news and commentary for just 44¢ a day! Make the time for Law Times and keep up with all the developments in Ontario's legal scene. Subscribe today and receive: • Unlimited access to the Law Times digital editions and to our digital edition archives...FREE • Canadian Legal Newswire, a weekly e-newsletter from the editors of Law Times and Canadian Lawyer...FREE professor, is a balance-of- power theorist. Canada's Constitution and political tradition, he argues, are based on a separation of powers that isn't total but remains real. Courts, leg- islatures, and governments all have their spheres that overlap but are still distinguish- able. Each should prevent the other from seizing unchecked power. It follows, Baker argues, that this balance depends on no branch of government acquir- ing a "trumping" power, one that enables it to take over the functions of the others. Lately, he suggests, courts have begun to invade the spheres of the other branches of the state. Worse, in his view, many scholars of constitutional law accept and celebrate the courts' invasion of the legislative and ex- ecutive roles. Baker believes these "judicial supremacists" want the courts to wield a trumping pow- er to which he believes no one should be entitled. Baker doesn't propose that q Send me 1 year of Law Times for only $159.00 (Total with GST: $166.95) Name: __________________________________________________________________________ Company: _______________________________________________________________________ Address: ________________________________________________________________________ City: ____________________________ Prov: _______________ Postal Code: __________________ Tel: ( ) _______________________ Fax: ( ) ______________________ Email: ____________________________________________________________________________ q Payment enclosed q Charge my: q Visa q Mastercard q American Express Card #: __________________________________ Expiry Date: ___ / ___ (mm/yy) Signature (required): ________________________________________________ Date: ________________ 240 Edward St. Aurora, ON. L4G 3S9 Tel: (905) 727-0077 Fax: (905) 841-4357 Mail or fax this form to Law Times governments or legislatures should simply ignore court rul- ings. But he notes the tradition- al role of the courts has been to rule on "cases and controver- sies," specifi c matters on par- ticular circumstances brought by unique litigants. Courts have neither the capacity of legisla- tures to frame general laws nor the institutional competence to administer their application. To oversimplify Baker's argu- ment, he suggests there is a place for legislatures to assert their au- thority over general law and for governments to assert their admin- istrative responsibility, particularly LT Sub ad - 1-4-3X.indd 1 5/26/10 11:09:06 AM History By Christopher Moore in the face of single court judg- ments that may prove to be outli- ers. He also believes there should be ways for legislatures to defend their law-making powers and for governments to defend their spending and administrative spheres against judicial decrees, especially those involving lower court rulings and split decisions that might be reversed elsewhere. Baker acknowledges that an ongoing series of judicial deci- sions must eventually shape what governments and legislatures can do. But he thinks most "dialogue theorists" are too deferential to courts when they argue that po- litical actors have no legitimate riposte to the judiciary other than the notwithstanding clause. Baker proposes "the minority retort" and "the textual retort" as plausible strategies by which legislatures and governments can engage in a creative and appro- priate struggle with the courts. Baker also considers one Meehan & Sharpe on Appellate Advocacy DVD How to develop an 'appealing' case Winning on appeal requires a different set of skills than winning at trial. With this video you'll get tips on written and oral advocacy and expert advice on how to triumph on appeal. Features winning techniques and strategies and identifies common pitfalls, you'll learn how to: • write an effective appellate factum • construct a compelling argument • improve your oral advocacy skills • marshal the facts and law for a successful case This 'how-to-win-an-appeal' video is an excellent guide to the essentials before an appellate court. Also includes tips on appealing board decisions useful in: ORDER your copy today DVD • $195 • May 2010 P/C 0765150000 ISBN 978-0-88804-496-9 • Labour Law • Human Rights • Provincial, Federal and Territorial Tribunals Canada Law BookNew! possible reason why so many constitutional theorists sup- port judicial supremacy. He ac- knowledges that, as the Supreme Court once said, today in Cana- da, "except in certain rare cases, the executive frequently and de facto controls the legislature." Baker suggests "the orthodoxy" supports judicial power as the only possible counterweight to executive dominance in the era of trained-seal backbenchers. He implies, however, that if the legislature is failing in its role, the solution should be sought there, not by transferring legisla- tive and executive powers to the courts with neither the skills nor the right to exercise them. Baker is neither a lawyer nor a judge, and one guesses his theory won't get a warm reception in law schools or judges' chambers. It might get a more sympathetic reading, however, in government offi ces and legislatures, which is where Baker expects the resis- tance to come from. LT Christopher Moore's newest book is Th e British Columbia Court of Appeal: Th e First Hundred Years. His web site is www.christopher moore.ca. For a 30-day, no-risk evaluation call: 1.800.565.6967 LT0628 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. Meehan & Sharpe_Video (LT 1-3x4).indd 1 www.lawtimesnews.com 6/23/10 11:18:09 AM Eugene Meehan, Q.C. and The H onourable Robert J. S harpe www .lawtimesnews.com FREE Includes a digital edition!

• Cover
• 100 Years
• Doing The Math
• Focus On Municipal & Planning Law